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CHAPTER V
Substantive provisions of labour legislation:
The right to strike
Introduction
Strike action is one of the fundamental means available to workers and
their organizations to promote their economic and social interests. It
is the most visible and controversial form of collective action in the
event of a labour dispute and is often seen as the last resort of workers’ organizations
in pursuit of their demands.
But strikes should not be seen in isolation from industrial relations
as a whole. They are expensive and disruptive for workers, employers
and society alike, and when they occur they are due to a failure in the
process of fixing working conditions through collective bargaining. Indeed,
more than any other aspect of industrial relations, they are often a
symptom of broader and more diffuse issues, with the result that even
if a strike is prohibited by national legislation or a judicial order,
this will not prevent it from occurring if the economic and social pressures
are sufficiently strong.
The right to strike is recognized by the ILO’s supervisory bodies as an
intrinsic corollary of the right to organize protected by Convention
No. 87, deriving from the right of workers' organizations to formulate
their programmes of activities to further and defend the economic and
social interests of their members. However, the right to strike is
not absolute. It may be subject to certain legal conditions or restrictions,
and may even be prohibited in exceptional circumstances (Freedom of
Association and Protection of the Right to Organise Convention, 1948
(No. 87), Article 3; General Survey on Freedom of Association and Collective
Bargaining, para. 151).
The right to strike is also recognized in international and regional
instruments, including the International Covenant on Economic, Social
and Cultural Rights of 1966 (Article 8(1)(d)), the Inter-American Charter
of Social Guarantees of 1948 (Article 27), the European Social Charter
of 1961 (Article 6(4)) and the Additional Protocol to the American Convention
on Human Rights in the Area of Economic, Social and Cultural Rights of
1988 (Article 8(1)(b)).
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The right to strike in constitutions and legislation
The right to strike is explicitly recognized in the constitutions and/or
laws of a great many countries. In some cases, it takes the form of an
individual right attaching to individual workers. In others, it is recognized
as a collective right of workers. In the latter case, individual workers
only benefit from the protection of the law when they participate in
a strike if the strike is called officially by a trade union.
 Example
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Definition of protected strike action
If industrial action in defence of the interests of workers is to be
protected (that is, if the participants are not to be held liable for
its consequences, and particularly its economic effects), it has to be
covered by the definition of a protected strike or similar industrial
action. Other acts, such as violence or interruptions of work that do
not fall within such a definition, are not protected.
In most cases, a work stoppage is deemed to be a strike. Other forms
of action which paralyse or reduce the economic activity of an enterprise,
such go-slows or work-to-rules, may or may not be assimilated to strike
action and be protected under the law. The ILO’s supervisory bodies
consider that legal restrictions on such forms of action can be justified
only where they cease to be peaceful.
Example
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Possible exclusions from the right to strike: public
servants; essential services; minimum service; disputes over rights
In some countries, all workers enjoy the right to strike, in both the
public and private sectors and irrespective of the impact on the public
interest of a work stoppage in their establishment. In other countries,
the right to strike is denied to public servants or to employees in essential
services. In many countries, strikes can be prohibited in emergency
situations.
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Public servants
Public servants, like other workers, are entitled to exercise the right
to organize. However, it is recognized in the principles of freedom of
association that high-level public servants, that is those exercising
authority in the name of the State, may be denied the right to strike
(General Survey, para. 158.). This prohibition of the right to strike
may include members of the judiciary and officials working in the administration
of justice, but may not be extended to cover public servants in general
or public employees engaged in state-owned commercial or industrial enterprises
(Digest of decisions and principles of the Freedom of Association Committee
of the Governing Body, paras. 537, 532).
In view of the above distinction, any legislative restrictions should
define as clearly and narrowly as possible the class of public servants
whose right to strike is restricted. The determination of such public
servants should be made on the basis of:
- the nature of the tasks that they perform; and
- the likely impact of disruption to that service in the event of
a strike.
Example
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Essential services and emergency situations
National legislation frequently places some form of limitation on the
right to strike in certain activities, usually defined as essential services.
In this respect, the ILO’s supervisory bodies have taken the position
that it is admissible to limit or prohibit the right to strike in essential
services, defined as those the interruption of which would endanger the
life, personal safety or health of the whole or part of the population
(General Survey, para. 159).
In this connection, legislation may establish a general definition of
essential services and leave its interpretation in specific cases to
a public authority or the courts. Or it may establish a procedure for
determining whether an activity should be deemed to be an essential service,
sometimes with the participation of employers' and workers' organizations.
In some cases, the legislation includes a list of activities deemed to
be essential services in which work stoppages are not permitted.
The determination of which services are to be considered essential in
each case is a delicate matter. For example, the interruption of a specific
activity in many countries might not be considered such as to endanger
the life, personal safety or health of the whole or part of the population,
while such a service may be essential in other countries in view of their
particular conditions. By way of illustration, port or maritime transport
services might be considered essential on an island that is heavily dependent
on them for basic supplies, whereas they would not be considered essential
in most countries. Moreover, the impact of a strike may depend on its
length. A stoppage of a few days may pose few problems, while one of
several weeks or months may cause serious prejudice to the population
concerned (for example, in household refuse collection services). In
view of the above, in some countries a specific authority is entrusted
with the power to declare a service to be essential or to prohibit a
strike in a service or activity when its length has created a situation
that is akin to an emergency for the whole or part of the population.
The ILO’s supervisory bodies have taken the position that where
the right to strike is subject to restrictions or a prohibition, the
workers concerned should be afforded compensatory guarantees, such as
conciliation and mediation procedures leading, in the event of deadlock,
to arbitration machinery seen to be reliable by the parties concerned.
In such cases, it is essential that the parties are able to participate
in determining and implementing the procedure, which should provide sufficient
guarantees of impartiality and rapidity. Moreover, arbitration awards
should be binding on both parties and once issued should be implemented
rapidly and completely (General Survey, para. 164).
Example
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Minimum service
With a view to ensuring that the basic needs of the population are met
during a strike in a public utility, an interruption of which would not
be so prejudicial to the public as to justify a total ban on strikes,
provision may be made for the maintenance of a minimum service. A minimum
service could also be required, instead of a total ban on strikes, in
essential services in the strict meaning of the term (General Survey,
paras. 160-162).
The ILO’s supervisory bodies have considered that this can be
an appropriate alternative in such services, provided that it is not
such as to call into question the right to strike of the large majority
of workers. Such minimum service provisions have to meet at least two
requirements:
- the service required must genuinely and exclusively be a minimum
service, that is one which is limited to the operations that are strictly
necessary to meet the basic needs of the population or the minimum
requirements of the service, while maintaining the effectiveness of
the pressure brought to bear; and
- the workers' organizations concerned should be able to participate,
if they so wish, in defining such a service, along with employers and
the public authorities.
The requirement of a minimum service should also be:
- defined very clearly;
- strictly applied; and
- known in advance to those who may be affected by it.
It is highly desirable in this respect that:
- negotiations on the definition and organization of the minimum service
are not held during a labour dispute, so that the parties can examine
the matter with objectivity and detachment; and
- the parties envisage the establishment of a joint or independent
body responsible for examining rapidly the difficulties raised by the
definition and application of such a minimum service, with the power
to issue enforceable decisions.
Example
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Disputes over rights
Disputes over rights set out in the law, collective agreements or contracts
of employment are often not considered to justify recourse to strike
action. This is because the parties are expected to have recourse to
adjudication by the relevant judicial or other body to resolve the dispute,
following any conciliation procedure that may be applicable.
Example
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Conditions for the exercise of the right to strike
National legislation frequently lays down a number of conditions that
must be met by workers and their organizations before they can exercise
the right to strike. However, in view of the danger that such conditions
may limit the freedom of workers and their organizations to organize
their activities and formulate their programmes, a they should not unduly
prevent recourse to strikes in defence of the interests of workers. In
this respect, the following conditions are often found in legislation:
- the exhaustion of conciliation or mediation procedures prior to
calling a strike;
- the requirement to hold a strike ballot, and for a majority of the
workers concerned to vote in favour of a strike, before it can be called;
and
- the obligation to give a period of notice prior to calling a strike.
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Exhaustion of conciliation and mediation procedures
The legislation in many countries requires that conciliation and mediation
procedures must be exhausted before a strike is called. Such a requirement
is in accordance with the principles of freedom of association and the
right to strike as it may encourage further negotiation. However, the
procedure should not be so slow or complex that a lawful strike becomes
impossible in practice or loses its effectiveness (General Survey, para.
171).
In some cases, the legislation directly provides that a strike may not
be called before conciliation and or mediation procedures are exhausted.
In others, this is the resultof a legislative requirement to notify disputes
to the conciliation services and the authorization of strikes only where
a dispute is unresolved after the respective procedures have been followed.
Example
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Strike ballots
The requirement to hold a strike ballot before calling a strike is
intended: to ensure that labour relations, including industrial action,
are carried out in an orderly fashion; to reduce the likelihood of wildcat
strikes; and to ensure democratic control over an important decision
for the workers concerned. Often, whether or not the legislation sets
out this requirement, provision is made in trade union rules for the
holding of strike ballots.
In countries where the right to strike is a collective right, and therefore
subordinate to a trade union decision, there is often a legal obligation
for a union to hold a strike ballot before a strike is called and for
a specific majority of the workers concerned to approve the strike. Provisions
of this type are in accordance with the principles of freedom of association
where they are not such as to make the exercise of the right to strike
very difficult or even impossible in practice. In particular, legislative
provisions on this subject should ensure that:
- the quorum and the majority required are reasonable and not such
as to make the exercise of the right to strike very difficult or even
impossible in practice;
- account is only taken of the votes actually cast in determining
whether there is a majority in favour of a strike.
(General Survey, para. 170; Digest, paras. 506, 507, 508, 511)
Example
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Notice periods
In many countries, the law requires workers and their organizations
to give a certain period of notice of their intention to strike. In so
far as this requirement is conceived as an additional stage in the bargaining
process and is designed to encourage the parties to engage in final negotiations
before resorting to strike action, it may be seen as a measure taken
to encourage and promote the development of voluntary collective bargaining,
in accordance with Convention No. 98. However, the required notice period
should not be so long as to unduly restrict the right to strike. Moreover,
shorter periods of notice should be required where the preceding period
of conciliation and mediation is already lengthy and has enabled the
remaining matters in dispute to be clearly identified (General Survey,
para. 172).
Notice periods that are applicable in general to all types of establishment
should be short, whereas those applying in essential services or services
of social or public interest may reasonably be longer. The Committee
on Freedom of Association has found the following notice periods in such
services to be compatible with principles of freedom of association:
- a 20-day notice period in the case of services of social or public
interest (Digest, para. 504); and
- a 40-day notice period in the case of an essential service, provided
that the time period is designed to provide the parties with further
time for reflection (Digest, para. 505).
Example
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Peaceful picketing
Strike picketing is aimed at ensuring the success of a strike by persuading
as many persons as possible to stay away from work. While national practice
varies in this respect, picketing is generally authorized and is often
regarded as a form of the right to strike. In some countries, the legislation
places certain conditions on picketing and workplace occupations. To
be in accordance with the principles of freedom of association, any such
restrictions should be limited to cases where the action ceases to be
peaceful (General Survey, para. 174).
Example
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Protection of strikers against dismissal and temporary
replacement
The maintenance of the employment relationship during and after strike
action is a normal legal consequence of recognition of the right to strike.
Indeed, if the legislation does not provide for genuine protection in
this respect, the right to strike may be devoid of content (General Survey,
para. 139).
Under the law of most countries, in the case of a lawful strike the
workers may not be dismissed by the employer for participating in it.
Generally, the individual contract of employment of a striking worker
is deemed to be suspended for the duration of the strike.
Example
Updated by MB. Approved by AB. Last Updated
10 December 2001.
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